Constitutional confrontation: Plaintiffs and lawyers hold up a sign declaring 'unconstitutional judgment' in front of the Tokyo High Court on March 6 after it ruled that December's Lower House election was unconstitutional. | KYODO

High courts set to rule; any voiding of '12 poll could hurt his legitimacy

With Prime Minister Shinzo Abe and his Cabinet enjoying astronomically high approval ratings compared with recent leaders, the prospects of his Liberal Democratic Party winning a critical Upper House election this summer look bright.

But two high-court rulings, on March 6 and 7, have put a large question mark over the legitimacy of Abe’s power base.

The Tokyo High Court and the Sapporo High Court ruled December’s Lower House election — in which Abe’s LDP won a convincing victory — was unconstitutional given the unacceptably wide vote-value disparities between some urban areas and rural locales with ever-decreasing populations.

A flurry of rulings for as many as 14 similar lawsuits filed by voters nationwide that challenge the legitimacy of all 480 incumbent Lower House members, including the 294 LDP lawmakers in the chamber, are expected to be handed down from Thursday through March 27.

On Thursday afternoon, the Sendai High Court and the Nagoya High Court are scheduled to announce their verdicts.

Experts say many of the high courts are also likely to declare the election unconstitutional, and some could even — for the first time ever — declare the election results invalid.

The court battles will continue on to the Supreme Court, meaning any high-court rulings declaring the poll unconstitutional will only have a symbolic impact for now.

However, an unconstitutional ruling will provide ammunition to critics of Abe, who hopes to revise the war-renouncing Constitution — a move that would require the support of incumbent LDP members as well as other right-leaning lawmakers elected in December’s poll.

“The current Lower House members were not elected in a legitimate manner. It would make no sense for them to discuss revising the Constitution,” said Katsutoshi Takami, an expert on the Constitution and a professor at Sophia University’s law school.

Takami pointed out the distorted seat allocation of December’s election goes against even the very first sentence of the Constitution, which stipulates that the Japanese people act “through duly elected representatives in the National Diet.”

Despite the enormous vote-value disparities — indicating an apparent erosion of the most fundamental political right in a democratic country — a majority of urban Japanese voters have remained mum on the issue.

An example of the gaping disproportion in the value of votes from the December poll was seen in the No. 3 single-seat district in Kochi Prefecture, where the value of one vote was worth 2.43 times that of the Chiba No. 4 district, an area with the smallest ratio of the number of Lower House lawmakers to their population.

Disparities of more than 2.0 times were seen in as many as 72 of the 300 single-seat constituencies nationwide, according to the Sapporo High Court ruling on March 7.

Of the 480 seats in the Lower House, 300 were elected through single-seat constituencies and the rest through proportional representation.

“Allocations of constituencies have become rather odd now,” Katsuya Okada, a former deputy prime minister with the Democratic Party of Japan, said during a March 7 Lower House Budget Committee session held after the Sapporo High Court ruling.

If seats were allocated to each area in strict proportion to the local population, Tokyo would have had at least five more seats and Kanagawa another three for December’s poll, Okada pointed out.

Meanwhile, Tottori Prefecture, which was given two single-seat constituencies, should have had just one, he said.

“We need to consider having fundamental (reforms) based on a strict population-proportional system,” Okada said.

The LDP, which has effectively ruled Japan since 1955, has eschewed calls to correct the vote-value disparities for years despite a consistent migration of rural voters to urban areas.

With many LDP heavyweights elected in rural areas, the party has appeared reluctant to respond to the repeated demands by courts to quickly correct the disparities.

In addition, power struggles involving a number of other political parties — each of which usually demanding an electoral system that would favor itself — have also stalled talks to reallocate Diet seats.

In November — although major parties had yet to craft a viable plan to correct the vote-value disparities as demanded by the Supreme Court in March 2011 — then-Prime Minister Yoshihiko Noda of the DPJ dissolved the Lower House.

At the time, the major parties had agreed to cut just one seat each from Yamanashi, Fukui, Tokushima, Kochi and Saga prefectures. This agreement would have curbed the maximum vote disparity to less than 2.0, a threshold that would have likely been immediately recognized by the courts as unconstitutional.

This realignment, however, was too late to be put in place for the December election, and an independent third-party council is continuing work based on this proposal to reallocate Diet seats in time for the next poll.

The Supreme Court has demanded more radical electoral reforms, calling for the abolition of the current rule, which first allocates one seat to each of the 47 prefectures unconditionally and then adds more in proportion to each prefecture’s population.

Under this rule, some depopulated areas tend to get more seats than their proportion to the population of the country. The Supreme Court argued this rule is one of the main causes of the distorted seat allocation.

Because of their own electoral interests, the major parties at present are not pursuing talks to rectify the vote-value imbalances.

Judicial authorities have slammed lawmakers for being too slow in correcting the vote-value disparity, although they have long been hesitant to give clear-cut rulings to declare any Lower House election unconstitutional or invalid.

In 1976, the Supreme Court ruled for the first time that the Lower House election held in 1972 was “unconstitutional,” citing a maximum vote disparity that reached as much as 4.99 times in some areas.

Still, the top court did not declare the election “invalid,” arguing that doing so would cause too much confusion and create an abnormal situation in politics.

Since then, no court rulings have declared election results “invalid,” although some have called them “unconstitutional” or “being in a state of unconstitutionality” the latter meaning, in judicial jargon, that it will be recognized as unconstitutional if no corrective measures are taken within a reasonable moratorium period.

Now, though, many experts say there is change in the air, with some high courts finally ready to issue a stronger warning to lawmakers by declaring the December poll results “invalid.”